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UNITED STATES v. SECORD

October 17, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD V. SECORD, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE.

 Re: Defendant's Request for Discovery (Defendant's Pretrial Motion No. 12)

 Now before the Court is Defendant's Request for Discovery pursuant to the Fifth and Sixth Amendments to the Constitution, Federal Rule of Criminal Procedure 16 and the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The parties have extensively briefed the issues in greatest dispute, and the Court heard oral argument on September 29, and again on October 16, 1989. Meanwhile, the Government has delivered or agreed to deliver a great many of the documents and other tangible evidence sought by Defendant. This Memorandum primarily deals with those categories of documents identified in Defendant's request, but which the Government refuses to acknowledge as "material" to Defendant's case under applicable standards.

 The standards themselves are well-established. Rule 16 and Brady entitle a criminal defendant to material or exculpatory evidence in the possession of the government. More specifically, Rule 16 requires the surrender of tangible evidence "material to the preparation of defendant's defense." Fed. Rule Crim.Pro. 16(a)(1)(C). This means that the Government should provide those documents which "will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony or assisting impeachment and rebuttal." United States v. Felt, 491 F. Supp. 179, 186 (D.D.C. 1979).

 Under the somewhat narrower Brady standard, the Government may not suppress exculpatory evidence which is material to the issue of guilt or punishment. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In Bagley v. United States, the Supreme Court elaborated that

 
evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Implicit in both the constitutional and the statutory standards is the concept of logical relevance. Obviously, any item should be turned over which bears on an element of the charges to be tried in the Defendant's favor, or is truly germane to some aspect of a reasonable defense.

 To force disclosure by the Government, Defendant must offer more than mere conclusory allegations that the documents he seeks are material. United States v. Cadet, 727 F.2d 1453, 1466 (9th Cir. 1984). Indeed, the evidence must not simply "bear some abstract logical relationship to the issues in the case . . . . There must be some indication that pretrial disclosure of the disputed evidence would [enable] the defendant significantly to alter the quantum of proof in his favor." United States v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975).

 I. THE GRATUITY COUNTS

 In counts 17, 18 and 19 of the original indictment, Defendant is charged with conspiracy to give a gratuity to a government official, Lt. Col. North, the giving of a gratuity (financial assistance), and the giving of a gratuity (security system), respectively. These gratuities, the Government alleges, were given "for or because of any official act performed or to be performed," as the relevant statute proscribes. See 18 U.S.C. § 201(c)(1)(A) (Supp. 1989). In his Memorandum, Defendant states that "his recruitment and continued participation in the Iran-Contra initiative throughout 1984-1986 was totally unrelated to any gratuity . . . ." Def.Mem. No. 12, at 5-6. To prove this, Defendant wishes generally to discover

 
all the facts and circumstances surrounding General Secord's participation in the Iran-Contra initiative. Simply stated we must show why General Secord was recruited; how he was recruited; what he was asked to do; who authorized him to do it; who knew about it; and how they knew about it.

 Id. See generally Def.Mot. No. 12, Categories F(2), K(4)-(20).

 The Government makes the point, and it is well taken, that documents falling within these areas are not material to the gratuity charge. The Court agrees that the government documents detailing the Iran-Contra initiative will not assist defendant's case. The giving of a gratuity is an offense much different than bribery. The Government need not prove that the gratuity was given in exchange for any specific official act; there need be no "quid pro quo," as Defendant has argued. Rather, for the counts charging the actual giving of a gratuity, the Government must show that Defendant acted simply because of North's official position, in appreciation for their relationship, or in anticipation of its continuation. *fn1" For the conspiracy count, all the Government must prove is an agreement to effect the illegal gratuity, and some overt act. United States v. Finazzo, 704 F.2d 300, 305 (6th Cir. 1983), cert. denied, 463 U.S. 1210, 77 L. Ed. 2d 1392, 103 S. Ct. 3543 (1983). The Government's proof is in no way tied to any specific transactions.

 This being the case, the reasoning behind Defendant's requests is misguided. Defendant argues that high government officials were involved in his recruitment, that they approved his activities, and knowing this, Defendant had no reason to thank Lt. Col. North, or to thank him to the exclusion of other officials. Defendant also asserts that revenues derived from the sale of arms to Iran funded other covert operations, apparently to argue that he therefore gained no real profit himself. Finally, ...


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